Executors: What to Do if the Will is Confusing

Are you are an executor acting under a will?

Wills can contain ambiguous, contradictory or impossible terms. In this post, I’ll give you some tips on handling such will problems.

You need to understand what the will requires you to do as executor. It is crucial for your job. The will gives you your marching orders. But what if the will tells you to do something you can’t do? What if your instructions are confusing?

Lawyers who prepare wills have not always been cherished for their use of simple language. A few lawyers use the old fashioned, Latin legalese in their wills. Most lawyers encourage the use of plain English for the sake of their clients.

Executors must follow the will terms to deal with estate assets and beneficiaries. Some wills contain legal boiler plate and archaic legal terms. Even I have trouble following the ins and outs. It’s hard to imagine that a person signing such a will really understands the document. It’s easy to fall asleep trying to read some of the wills that come across my desk.

An Example of a Will Problem

What if the Will asks you to do something you can’t do?

Say Jack’s will specifies that you, as executor, must operate his business for 10 years. You must then hand over the business to Jack’s son, Ted, when Ted turns 21. Let’s assume you have not decided that this is a deal breaker.

You will need independent advice to protect yourself. Don’t rely only on the advice of the business or estate lawyer who drafted the will.

You are bound to have questions, including:

1. What if I have no skills to operate the business?

2. What if I need to sell the business?

3. What if I cannot run the business profitably until Ted turns 21?

Get Advice from a Judge

If the will does not clearly answer your questions, you must seek advice from the court.

You will need a lawyer to ask a judge for directions and advice. This gives you comfort of knowing you are not making a mistake. The judge can give you an answer on any interpretation issues.

Ted will hire a lawyer and make submissions to the court. You will want the court to give you clear directions about what to do.

Where Do You Get Money to Run a Business?

Will it come from the money intended for other beneficiaries under Jack’s will? The beneficiaries may want to have a say in court as they are affected by the decision.

Should you consider renouncing as an executor?

You can consider quitting as executor. Running a business is risky and exposes you to personal liability. Check the will to see what protection it offers.

• Make sure the will protects you from business losses.

• Can you hire managers to run the operations?

• Must you be there daily or can you delegate supervision?

• You may want the beneficiaries to agree not to sue you.

Executors must review the will to confirm their instructions. You will need legal advice to understand your duties.

Protect yourself. Remember, only lawyers can give legal opinions on wills. When necessary, get a court order to validate your interpretation of confusing will clauses.

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven estate books including Executor Kung Fu: Master Any Estate in Three Easy Steps. Visit his law firm’s website, MrWills.com, for more free valuable information.